Nevada County Water Quality

Nevada County Grand J ury 2013-2014 Page 1 of 11

NEVADA COUNTY WATER QUALITY 1
2
The Impact of Mine Water in Nevada County 3
4
5
Summary 6
There has been a long history of mining operations in the Northern Mines District of 7
California, including western Nevada County. Mining, by its very nature, has often had an 8
impact on the quality of drinking water for residents of Nevada County. 9
10
The 2013-2014 Nevada County Grand J ury chose to inquire into efforts undertaken by 11
federal, state and local officials and agencies in ensuring safe, clean drinking water for 12
residents of Nevada County residing in areas in and around former mine sites. Specifically, 13
the 2013-2014 Nevada County Grand J ury inquired into efforts made by the aforementioned 14
officials and agencies around three former mining operations: the Lava Cap Mine, the North 15
Star Mine and the Empire Mine. 16
17
The Nevada County Grand J ury found that there were two instances, in 1979 and 1997, 18
where the tailings and effluent from the Lava Cap Mine had been released into an area of the 19
county’s watershed. The Nevada County Grand J ury found numerous reports, orders, letters 20
and internal memoranda which indicate that the responsible agencies failed to act. Agencies 21
discussed and agreed there was a need to take action, but to date no remedial actions have 22
occurred. Documents reviewed by the Nevada County Grand J ury indicated the various 23
agencies realized that a Clean Up and Abatement Order for the affected area had not been 24
adequately supervised and managed. These documents indicate when it was recognized that 25
the Clean Up and Abatement order had not been completed, further documents indicated that 26
at least one agency debated how to explain their failure to act to the public, rather than 27
developing a plan to enforce the Clean Up and Abatement Order. 28
29
The Nevada County Grand J ury finds that the North Star Mine site continues to discharge 30
toxin laden water into the Grass Valley Waste Water Treatment Plant. During heavy rains, 31
the additional flow from the mine site causes over capacity of the treatment plant and the 32
subsequent spillage of untreated water into Wolf Creek. 33
34
In a negotiated settlement, the owners of the North Star Mine site agreed to construct a new 35
treatment plant, which would treat the additional flow into the treatment plant by February 36
2013. To date, the new treatment plant has not been constructed. The Nevada County Grand 37
J ury finds there has been no discernible effort by the City of Grass Valley to seek judicial 38
relief in the enforcement of the civil agreement. 39
40
The Nevada County Grand J ury finds that the Empire Mine State Historical Park produces a 41
discharge path known as the Magenta Drain, from which mine effluent naturally flows. The 42
Magenta Drain flows adjacent to and through city public park property, an area frequented by 43
families and children. 44
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The Nevada County Grand J ury finds that there is evidence of construction in the Magenta 45
Drain adjacent to and through Memorial Park. No permits were found for the diversion of a 46
water course issued either from City of Grass Valley or from Nevada County Building 47
Department and there are no inspection reports from either agency. 48
49
The Nevada County Grand J ury found that for over 30 years, there has been a lack of 50
coordination and communication and a failure to accept responsibility by federal, state and 51
local governmental agencies in efforts to monitor the water quality in some areas of Nevada 52
County. These agencies have failed to properly enforce clean up and abatement orders and 53
legal agreements and/or settlements ordered against the then property owners of former 54
mining operations. The Nevada County Grand J ury finds that waterways containing 55
contaminants from former mining sites flow unimpeded into a municipal wastewater 56
treatment facility, resulting in over capacity of the facility and spillage of untreated water. 57
Additionally, some waterways openly flow past parks and schools which are frequented by 58
the public, including families with small children. As a result, the Nevada County Grand 59
J ury finds that the health and welfare of some residents of Nevada County and their water 60
quality may be compromised. 61
62
The Nevada County Grand J ury recommends that federal, state and local agencies should 63
meet and confer to develop and implement a written agreement to define the responsibilities 64
of each agency for the safeguarding of water quality in Nevada County. 65
66
It is further recommended that the Nevada County Board of Supervisors direct the Director 67
of the Community Development Agency to revisit and examine the Lava Cap Mine incidents 68
of 1979 and 1997 and develop and implement policy and procedures to ensure appropriate 69
clean up of the affected area and future incidents of this type. The Nevada County Grand 70
J ury also recommends the Nevada County Board of Supervisors direct the Director of the 71
Community Development Agency to develop and implement policy and procedures for 72
periodic testing of surface and ground water and communicate the findings to the general 73
public. 74
75
The Nevada County Grand J ury also recommends the City Council of the City of Grass 76
Valley should direct the City Manager to develop and implement a legal strategy to ensure 77
immediate adherence by the defendant to the terms outlined in the 2009 civil settlement. It is 78
further recommended that the City Council of the City of Grass Valley should direct the City 79
Manager to take immediate steps to ensure the safety of the public using Memorial Park from 80
toxins emitting from the Magenta Drain and should immediately initiate meetings with 81
representatives of the Empire Mine State Historical Park to develop and implement a plan to 82
divert the contents of the Magenta Drain away from Memorial Park. 83
Reasons for Investigation 84
The 2013-2014 Nevada County Grand J ury (J ury), exercising its oversight responsibilities 85
pursuant to California Penal Code §925, reviewed the actions of several public agencies and 86
municipalities in this matter. 87
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Background 88
There has been a long history of mining operations in the Northern Mines District of 89
California, including western Nevada County. Mining, by its very nature, has often had an 90
impact on the quality of drinking water for residents of Nevada County. 91
92
The J ury chose to inquire into efforts undertaken by federal, state and local officials and 93
agencies in ensuring safe, clean drinking water for residents of Nevada County residing in 94
areas in and around former mine sites. Specifically, the J ury inquired into efforts made by 95
the aforementioned officials and agencies in areas in and around three former mining 96
operations: the Lava Cap Mine, the North Star Mine and the Empire Mine. 97
98
Procedures Followed 99
The J ury interviewed staff from Nevada County and the City of Grass Valley (City). The 100
J ury also reviewed multiple documents including, but not limited to, reports, letters, 101
correspondence and internal memoranda from various federal, state and local agencies as 102
well as federal and state courts. 103
104
Facts 105
Fa. 1 The California Water Code (CWC) established an agency known as the State Water 106
Resources Control Board (SWRCB). 107
108
Fa. 2 The CWC authorized the SWRCB to “… conduct investigations of all or any stream, 109
stream system…” and to … “investigate either or both surface and underground 110
water conditions.” 111
112
Fa. 3 The SWRCB website states that it “… regulates the disposal of wastes into the waters 113
of the state and requires that the quality of existing high-quality water be 114
maintained.” 115
116
Fa. 4 The California Department of Toxic Substance Control (DTSC) website states that it 117
protects “… people and environment from harmful effects of toxic substances by 118
restoring contaminated resources.” 119
120
Fa. 5 The California Department of Fish and Wildlife, formerly known as California 121
Department of Fish & Game (F&G) website states that it is responsible to monitor 122
water quality and wildlife in the state. 123
124
Fa. 6 The Nevada County Department of Environmental Health (EH) website states that it: 125
“…is responsible for environmental protection and public health … whether it is the 126
water you drink … or land that is developed and used by all of us.” 127
128
Fa. 7 The Nevada County Planning Department (Planning) website states that it is their 129
goal to protect the environment in order to ensure that Nevada County remains a 130
desirable place to live, work, and recreate by applying community land use polices. 131
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Fa. 8 EH and Planning are each directed by a department head who reports to the 132
Community Development Agency Director, who reports to the Nevada County Chief 133
Executive Officer. 134
Lava Cap Mine 135
Fa. 9 The Lava Cap Mine (Mine) is physically located south of the intersection of Idaho 136
Maryland Road and Banner Lava Cap Road in an unincorporated area of Nevada 137
County. 138
139
Fa. 10 In 1940, a cyanide plant was activated on the site that “leached” cyanide middlings 140
and tailings which were deposited in a ravine on the site. 141
142
Fa. 11 Between 1940 and 1941, a 60 foot high log dam was constructed to hold the mine 143
tailings in place. 144
145
Fa. 12 In 1943, Lost Lake was dug to provide a mining impoundment area specifically to 146
contain run off from the mine site. 147
148
Fa. 13 In 1979, the log dam partially collapsed, releasing an estimated 80,000 cubic yards of 149
mine waste downstream towards Lost Lake. 150
151
Fa. 14 The estimated 80,000 cubic yards of material would cover an area approximately 152
2,400 feet long, 300 feet wide and three feet high. 153
154
Fa. 15 Personnel from EH and SWRCB responded to this incident. 155
156
Fa. 16 On October 25, 1979, the SWRCB issued a Clean Up and Abatement Order (C&A 157
Order) to the then owner and the operators of the Mine property. 158
159
Fa. 17 An engineering firm was contracted by the then owners of record to supervise and 160
monitor compliance with the C&A Order. This order included removal of all mine 161
waste deposited downstream. 162
163
Fa. 18 The engineering firm published two letters in November 1979 regarding discharge 164
from Lava Cap Mine. 165
166
Fa. 19 Planning received copies of all correspondence pertaining to the 1979 C&A Order. 167
168
Fa. 20 Title 42 United States Code entitled Comprehensive Environmental Response, 169
Compensation and Liability Act (CERCLA), commonly known as “Superfund” 170
statutes, states that the party causing the toxic environment is responsible for site 171
clean up. 172
173
Fa. 21 In 1984, a corporation attempted to reopen the Mine. A formal request was made to 174
the SWRCB for pumping water out of the mine consisting of 63,000,000 gallons of 175
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water into Little Clipper Creek and Clipper Creek. The request was denied by 176
SWRCB. 177
178
Fa. 22 Later in 1984, the corporation petitioned Planning for a zone district combining 179
change for mineral extraction. The combined zone request was originally approved 180
by Planning, EH and Nevada County Building Department and certified by the Board 181
of Supervisors (BOS). However, public outcry then convinced the BOS to rescind 182
their approval. 183
184
Fa. 23 On May 15, 1989, 486.5 acres including the Mine and surrounding property was sold 185
to another buyer. 186
187
Fa. 24 For this sale, a local title company issued two different sets of escrow instructions, 188
each denying existence of dangerous or toxic chemicals on site. 189
190
Fa. 25 SWRCB records and memoranda indicate that they did not initiate follow up with the 191
engineering firm contracted to monitor the 1979 C&A Order. Documents reflect that 192
SWRCB did not know what, if any, work had been completed. 193
194
Fa. 26 On September 23, 1991, SWRCB generated a handwritten internal memorandum 195
entitled, – RE: 25 October 1979, Clean Up and Abatement Order, decrying the belief 196
that the clean up had apparently ceased, stating in part, “There is no record of our 197
rescinding this Order.” 198
199
Fa. 27 EH was provided copies of this internal memorandum. 200
201
Fa. 28 On J anuary 1, 1997 the remaining upper portion of the log dam collapsed, releasing 202
an additional 10,000 cubic yards of tailings into Little Clipper Creek. Personnel from 203
EH and F&G inspected the site and issued incident reports. 204
205
Fa. 29 These 1997 incident reports reflect that extensive deposits of tailings were observed: 206
207
• in and on the shoreline of Little Clipper Creek, 208
• at the confluence of Little Clipper and Clipper Creeks, 209
• in and on the shoreline of Lost Lake, 210
• in wetland area contiguous with these water bodies, and 211
• in some cases, completely covering the vegetation. 212
213
Fa. 30 These incident reports do not mention the previous dam failure in 1979. 214
215
Fa. 31 An internal memorandum, dated March 5, 1997, from SWRCB staff, entitled RE: 216
C&A Order follow up, states in part; “I looked in the C&A file and it said that the 217
C&A was issued on 10/25/79 to (name withheld). Compliance was required forthwith 218
and it says that a Technical Report was submitted on 11/6/79. It says the C&A was 219
rescinded but no date was given. … There was (name withheld) memo that said that 220
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the C&A was rescinded but that there was no record of when or why. The file doesn’t 221
contain anything useful.” 222
223
Fa. 32 This internal memorandum concludes with the following; "What should we tell DTSC 224
or any media who might call, especially about the C&A?" 225
226
Fa. 33 An internal memorandum dated May 20, 1997, from staff at SWRCB, entitled RE: 227
INSPECTION STATUS OF LAVA CAP MINE, NEVADA COUNTY states in part; “I 228
searched the microfiche files and found that there is no record in the project file that 229
the C&A Order was ever rescinded." and, "I have found no record that they ever did 230
anything to stabilize the dam or tailings pile. There is no Technical Report in the 231
microfiche or project file.” 232
233
Fa. 34 On J une 20, 1997, SWRCB passed responsibility for the oversight of the 1979 and 234
1997 events to DTSC. 235
236
Fa. 35 On J anuary 23, 2009, a copy of a log entitled Clean Up and Abatement Order was 237
sent out from SWRCB. This document indicated the 1979 C&A Order for the Mine 238
was “rescinded”. There is a disposition that the 1979 C&A Order was rescinded for 239
the Mine but the form contains questionable entries: 240
241
• this document has 33 total sites listed, 242
• 25 of the entries are noted to have been rescinded, including the Mine, without 243
explanation. 244
245
Fa. 36 The current property owner of the Mine has been held responsible by CERCLA for 246
the clean up and abatement of the failures of the log dam in 1979 and 1997. 247
248
Fa. 37 On several occasions, state and federal officials have entered the Mine properties and 249
drilled monitoring wells without proper permits 250
251
Fa. 38 During several EH staff meetings the question of the requirement of a monitor well 252
permit was asked. 253
254
Fa. 39 EH management personnel verbally stated that the issue was not to be brought up 255
and for staff to “drop the issue” of requiring monitoring well permits. 256
257
Fa. 40 There are water quality condition concerns below the Mine which exist to this day. 258
259
Fa. 41 Water quality levels are currently unknown following the failure to manage the C&A 260
Order of 1979 by SWRCB. 261
262
Fa. 42 On or about May 22, 2012, California DTSC, applied for an Inspection Warrant to 263
inspect the Mine property at a cost to the Mine owner $20,000. The warrant did not 264
make any reference the 1979 C&A Order regarding the 80,000 cubic yard release of 265
mine tailings. The only reference regarding this incident was, "In 1979, a 266
decomposing log dam on the property failed, releasing tailings into LCC.” LCC is 267
Little Clipper Creek. 268
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269
Fa. 43 EH staff has stated they are unaware of the water quality in and around the area of 270
the Mine. 271
272
Fa. 44 EH staff stated their only responsibility is for new well construction conforming to 273
current statutes. 274
275
Fa. 45 On J une 30, 2013, The United States District Court, Eastern District of California 276
published a finding concerning the Mine, summarized as follows: 277
278
• Little Clipper Creek, Clipper Creek drainage and Lost Lake contain elevated 279
levels of arsenic in drinking water wells, 280
• mill tailings were placed directly onto the soil at the Mine site, 281
• on September 27, 1979, the Water Board knew of the arsenic contaminated 282
water at the Mine site and wrote a letter to the Mine owner, 283
• on October 9, 1979, F&G received complaints about discharges from the 284
Mine, 285
• in 1982, a state biologist made an inspection and observed the discharges to 286
contain toxins and the wood dam was not stable and would collapse during 287
heavy rains, 288
• following the 1979 release of 80,000 cubic yards of tailings, the private 289
contractor was hired to remove the tailings but did not. He noted that the 290
remainder of the dam was unsafe. 291
292
North Star Mine/Grass Valley Wastewater Plant 293
Fa. 46 The City possesses a license, issued by the SWRCB, to operate a wastewater 294
treatment plant (WTP). 295
296
Fa. 47 The WTP is designed to process organic discharges at the rate of approximately 297
800,000 gallons per day. 298
299
Fa. 48 After processing, the treated effluent is released into Wolf Creek. 300
301
Fa. 49 The City is required to renew their license to operate this treatment facility from the 302
SWRCB at regular intervals. 303
304
Fa. 50 The SWRCB, in the operating license renewal, has required that the WTP continue 305
receiving the mine water produced by the North Star Mine. 306
307
Fa. 51 The Drew Tunnel is a component of the North Star Mine. 308
309
Fa. 52 The Drew Tunnel also contains drainage from the surrounding Empire-Star Mine. 310
311
Fa. 53 In 2000, the Drew Tunnel was damaged by a landslide. 312
313
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Fa. 54 During storm conditions the damaged Drew Tunnel discharges 400,000 gallons of 314
contaminated water per day into the WTP. 315
316
Fa. 55 The contaminated mine water contains iron, manganese, copper, lead, zinc and 317
mercury. 318
319
Fa. 56 The WTP is not designed to process non-organic chemicals. 320
321
Fa. 57 During severe rainstorms, the capacity of the WTP is often exceeded, caused by an 322
increase in the amount of City runoff in addition to the Drew Tunnel flow. 323
324
Fa. 58 On these occasions, the WTP is unable to properly treat all water flowing into the 325
facility and the effluent is discharged into the Wolf Creek watershed. 326
327
Fa. 59 Prior to February 2009, the City was reluctant to complain to state legislators for 328
assistance in this situation, as the City believed the SWRCB would exert the 329
maximum fines for untreated discharge. 330
331
Fa. 60 On J anuary 22, 2004, the City filed a civil suit against the owners of the North Star 332
Mine property (defendants). 333
334
Fa. 61 On May 1, 2007, a draft C&A Order for Drew Tunnel was issued by the SWRCB. 335
336
Fa. 62 In February 2009, after 1,532 days, the City and the defendants reached a civil 337
settlement in the lawsuit. The agreement states, in part: 338
339
• the defendants may continue discharge of mine water containing toxins into 340
the City’s wastewater plant, 341
• the defendants will pay any fines imposed on the City for overflows of the 342
WTP, 343
• the defendants will pay a reasonable water treatment fee, 344
• the defendants will construct their own water treatment plant no later than 345
February 2013. 346
347
Fa. 63 To date, the defendants have not begun construction on their treatment plant as 348
required by the agreement. 349
350
Fa. 64 Neither the City nor EH has tested water quality in, around or downstream from the 351
WTP. 352
353
Empire Mine State Historical Park/The Magenta Drain 354
Fa. 65 Empire Mine State Historical Park (Empire) is owned by the State of California. 355
Fa. 66 Prior to 1975, Empire was owned by the corporation that currently owns the North 356
Star Mine. 357
358
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Fa. 67 Empire is located adjacent to Memorial Park, a public park owned by the City, 359
frequented by families with children. 360
361
Fa. 68 The Magenta Drain originates in Empire and openly flows through property adjacent 362
to and under Memorial Park. 363
364
Fa. 69 The Magenta Drain continues to flow below Memorial Park past Grass Valley Charter 365
School and eventually into Wolf Creek 366
367
Fa. 70 The Magenta Drain evacuates mine water from the Empire Mine. 368
369
Fa. 71 According to an independent contractor's report dated J uly 2006, the evacuated water 370
from Empire property contains chemical contaminants from the Empire Mine. 371
372
Fa. 72 There were chain link fences erected around the Magenta Drain, in and around 373
Memorial Park, and have been replaced by orange, plastic construction fencing, to 374
prevent access to the watercourse. Signs are posted that warn against: 375
376
• wading in the water flowing in the Magenta Drain, 377
• drinking water from the Magenta Drain, 378
• eating fish caught from the Magenta Drain, 379
• handling the sediment in the Magenta Drain, and further warn, “The water and 380
sediment contains residual metals and chemicals that may be hazardous.” 381
382
Fa. 73 Officials from the City and EH do not test water quality in and downstream from 383
Memorial Park. 384
385
Findings 386
Fi. 1 For over 30 years, the following agencies have failed in their responsibilities to 387
monitor water quality in Nevada County due to a lack of coordination and 388
communication and failure to follow through with mandated clean up orders. Due to 389
these omissions, the health and welfare of residents of Nevada County and their water 390
quality is compromised. The responsible agencies are: 391
392
• State Water Resources Control Board (SWRCB), 393
• California Department of Fish and Game (F&G), 394
• State Department of Toxic Substance Control (DTSC), 395
• Nevada County Department of Environmental Health (EH), 396
• Nevada County Planning Department (Planning), 397
• City of Grass Valley (City). 398
399
Fi. 2 Due to a lack of agency cooperation to address the problems effectively and 400
efficiently, public health is potentially endangered. 401
402
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Fi. 3 There was internal acknowledgement of frequent failures by governmental agencies 403
in these matters. Numerous efforts were made to conceal these failures from the 404
public. 405
406
Fi. 4 Because the City does nothing to monitor water quality in, around and downstream 407
from the North Star Mine and WTP, the City faces potential public health issues and 408
litigation. 409
410
Fi. 5 Due to a lack of compliance with the 2009 civil settlement, water quality continues to 411
be questionable and potable water downstream from the WTP continues to be 412
consumed, placing public health at potential risk. 413
414
415
Recommendations 416
The J ury recommends: 417
418
R. 1 The Nevada County Board of Supervisors should request the following agencies to 419
meet and confer to develop and implement a written agreement to define the 420
responsibilities of each agency for the safeguarding of water quality in Nevada 421
County: 422
423
• US EPA, 424
• State Water Resources Control Board, 425
• California Department of Fish & Game, 426
• California Department of Toxic Substance Control, 427
• Nevada County Department of Environmental Health, 428
• Nevada County Planning Department. 429
430
R. 2 Nevada County Board of Supervisors direct the Director of Community Development 431
Agency to: 432
433
• develop and implement policy and procedures for periodic testing of surface 434
and ground water at the locations identified in this report and communicate 435
the findings to the general public, 436
• revisit and examine the Lava Cap Mine incidents of 1979 and 1997 and 437
develop and implement policy and procedures to ensure appropriate clean up 438
of such incidents, 439
• develop and implement a plan for the immediate enforcement of the 1979 440
Clean Up and Abatement Order concerning the area below the Lava Cap 441
Mine. 442
443
R. 3 The City Council of the City of Grass Valley should direct the City Manager to: 444
445
• develop and implement a legal strategy to ensure immediate adherence by the 446
defendant to the terms outlined in the 2009 civil settlement, 447
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• take immediate steps to ensure the safety of the public using Memorial Park 448
from Magenta Drain toxins, 449
• immediately initiate meetings with representatives of the Empire Mine State 450
Historical Park to develop and implement a plan to divert the contents of the 451
Magenta Drain away from open ditches which endanger the public. 452
453
Responses 454
455
Nevada County Board of Supervisors: 456
Findings: 1, 2, and 3 457
Recommendations: 1 and 2 458
Due Date: September 20, 2014 459
460
City Council of the City of Grass Valley: 461
Findings: 1, 2, 4 and 5 462
Recommendations: 3 463
Due Date: September 20, 2014 464
465

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